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Notice to solicitor is not notice to
client.
Is the giving of a notice to a solicitor the equiv
alent to giving the notice to a person unless that
person is shown to have authorized the solicitor to
have received the notice or to have held him out
as so authorized ?
No, said the full Court of the High Court of
Australia, because it must be the solicitor's duty to
communicate the notice to the client.
In this case
a solicitor who had acted only as the agent of another
solicitor to obtain and forward to the latter a mother's
consent to an adoption order was not thereby made
an agent of the client to receive from the mother
subsequent notice of the withdrawal of the consent
to the adoption order.
(R.
v. Biggin, ex party Fry.
(1955)
A.L.K.
222
F.C.
Victorian Law Institute
Journal, Vol.
29,
page
129.)
Oral
agreement
to
charge
less
than
the
authorized scale not enforceable.
In a taxation of a bill of costs, can a client object
to the taxaf'on on the alleged ground that there was
an oral agreement with the firm that they would
charge less than the authorized scale ?
No, said Pearson, J. because on the plain meaning
of Section 57 (3) of the (English) Solicitors Act,
1932, an agreement between solicitors and client
with regard to the amount of charges for non-
contentious business must be in writing in order to
displace
the authorized
scale;
accordingly
the
alleged oral agreement could not be relied on by the
client.
Per Pearson, J. :—" It was argued for the client
in Jennings
v.
Johnson (8 C.P. 425), that under
section 4 of the Attorneys and Solicitors Act, 1870,
the client could rely upon an oral agreement for
special charges to be made ;
and that that must
still be the position in regard to contentious busi
ness under section 59 of the Solicitors Act, 1932,
which is merely a consolidating Act; and that
the position should be the same in relation to nor>-
contentious business under
the Solicitors Re
muneration Act,
1881, and section
57 of the
Solicitors Act, 1932, as otherwise there would be an
anomaly.
On the other hand, it was contended that the
firm of solicitors was prepared to admit for the
] urposes of the argument that the position is
anomalous, but that, nevertheless, effect must be
given to the plain words and unmistakable meaning
of the Act of 1881 as reproduced in section 57 of
the Act of 1932.
I think the main point to notice there is the
difference of wording in section 8 of the Act of 1881
from the wording in section 4 of the Act of 1870.
Section 4 of the Act of 1870 oddly provided only
that a solicitor may make an agreement with his
client, but section 8 of the Act of 1881 says :
"it
shall be competent for a solicitor to make an agree
ment with his client, and for a client to make an
agreement with his solicitor. It is clearly regarding
the transaction from each of its two sides."
NOTE :—Section 4 of the Attorney's and Solicitors
Act, 1870, provided briefly that a solicitor could
make an agreement in writing with his client as to
the amount and manner of payment for the whole
or any part of any past or future services, fees or
disbursements in respect of business done or to be
done; such agreement could provide for a gross
sum or a commission or a percentage or a salary
and the remuneration could be at the same or at a
greater or lesser rate than the rate to which he could
otherwise be entitled to be remunerated.
(This
section applied
to both contentious and non-
contentious business).
Section 9 of the Solicitors
Remuneration Act, 1881 states that the Attorneys and
Solicitors Act, 1870 shall not apply to any business
to which this Act relates. Section 8 of the 1881 Act
provides that in relation to any business under that
Act, it is competent for a solicitor to make an
agreement in writing with his client, or a client to
make an agreement with his solicitor before or after
or in the course of the transaction of any such
business for the remuneration of the solicitor to such
amount and in such manner as the solicitor and the
client think fit, whether by gross sum or by per
centage or by salary or otherwise. The fact that
such agreement should be in writing, signed by the
person to be bound thereby, or his agent, contained
in that section is repeated in section 57 (3) of the
English Solicitors Act, 1932.
It therefore seems
clear that the requirement of an agreement in writing
has always been mandatory, whether the agreement
relates to contentious or non-contentious business.
(In Re a Solicitor
(1955), 3
All. E.R.
305.)
STATUTES OF THE OIREACHTAS,
1955.
No.
Signed by President
1. Medical Practitioners Act, 1955
2nd March, 1955
2. Agriculture
(Amendment) Act,
1955
2nd March, 1955
3. Supplies and Services (Temporary
Provisions) Act, 1946
(Contin
uance and Amendment) Act, 1955
i6th March, 1955
4. Central Fund Act, 1955
2ist March, 1955
5. Tourist Traffic Act, 1955
2ist March, 1955
6. Customs (Temporary Provisions)
Act,
1945
(Continuance) Act,
1955
zist March, 1955
7. Imposition of Duties (Confirma
tion of Orders) Act, 1955
loth May, 1955
8. Fertilisers, Feeding Stuffs and
Mineral Mixtures Act, 1955
loth May, 1955
9. Local Government Act, 1955
loth May, 1955
64